The Current State of Social Host Liability in Canada

On May 5, 2006 the Supreme Court of Canada released its decision in Childs v. Desormeaux. The decision was the first time the somewhat novel issue of social host liability had been in front of our Country’s highest court.

We were proud and excited to be representing our client, Zoe Childs. We were confident that the facts of our case were far enough removed from your typical home-hosted social event to merit a finding of liability against the host.

While obviously disappointed with the outcome, the reasoning behind the Court’s dismissal of the appeal was more baffling to us than the fact that we lost.

A brief recap on the specific facts in Childs v. Desormeaux is an important starting point for any update on social host liability. The evidence at trial in Childs painted a picture of a long time alcoholic who attended a New Years party at the home of a long-time friend who was well aware of his alcohol problem.

The evidence at trial included the fact that that host of the party, Courrier, and the impaired driver, Desormeaux, had been friends for 20 years and partied together often. Desormeaux admitted at trial to being an alcoholic for 20 years. For a period of time Courrier, and Desormeaux had lived together and held continuous parties almost every weekend in which Desormeaux would sometimes drink 24 beer in the course of a day.

Desormeaux would blackout and urinate himself in his bed while living with Courrier. Ultimately, Desormeaux’s roommates forced him to move out because of his excessive drinking.

In the years preceding the accident Mr. Desormeaux accumulated two convictions for impaired driving. Mr. Courrier and his girlfriend, co-host of the party, were aware of those convictions.

The evidence regarding Desormeaux’s excessive drinking and the knowledge of the hosts made it clear that the hosts had invited a friend to their party who had a long term and significant alcohol problem and had a history of driving while impaired.

The trial judge, Justice James Chadwick, specifically found that Desormeaux would have been exhibiting signs of impairment when he left the party. He had a blood alcohol content of 235mg/100ml.

The trial judge also found that Courrier spoke to Desormeoux just before he left the party. In fact, Courrier did nothing more than ask him “Are you okay brother?” and watched Desormeaux drive away.

Despite the trial judge finding that Mr. Desormeaux would have been visibly impaired and that Courrier spoke to him as he was leaving, the Supreme Court reached a conclusion that there was no finding by the trial judge that the hosts knew, or ought to have known, that Desormeaux was impaired. The Supreme Court went on to find that hosting a party at which alcohol is served does not, without more, establish the degree of proximity required to give rise to a duty of care on the hosts to third-party highway users who may be injured by an intoxicated guest.

We felt that the trial judge had made the necessary factual findings to leave it open to the Supreme Court to find that a duty existed and to instead address the broader pubic policy considerations of a novel tort like social host liability as a broader legal principle in Canada.

Instead, the Supreme Court reached the conclusion that there was no finding that the host knew the guest was intoxicated and left social host liability as a tort in Canada as murky and unclear as ever by leaving the door open for a situation with “more”.

In a case involving a novel tort, it is necessary to apply to two-stage test set out in the Anns v. Merton London Borough Council case. While we had argued that social host liability was not a novel tort, but rather a typical negligence scenario, we realistically expected the case to turn on the policy considerations at the country’s highest court.

The record in front of the panel at the Supreme Court included evidence from MADD, the insurance industry and various other interested parties addressing the various policy considerations behind social host liability. However, the Court decided it was unnecessary to consider whether any duty would be negated by policy considerations because there was no duty in the first place.

By including the phrase, without more, the SCC left the door open for what would seem to be a very narrow and specific set of circumstances to succeed with a social host liability finding. While inviting a 20 year alcoholic with multiple impaired driving charges to your home for New Years Party, watching him drink several beer, and letting him get in his car while displaying visible signs of intoxication was not enough to create a duty of care the Supreme Court was of the view that there may be some other circumstance that would place a duty on a host.

Little has changed in the law of social host liability in Ontario since 2006. But, a few noteworthy summary judgment motions have touched on the issue of social host liability.

In Hamilton v. Kember and Oyagi v. Grossman summary judgment motions by the parents of social hosts were dismissed suggesting that the facts did not preclude a finding of a duty of care and should be left to a trial judge.

The BC case of Sidhu v. Hiebert involved another summary judgment motion in the social host context. Similar to Childs, the Plaintiffs in Sidhu were innocent third parties who were hit by an impaired driver. The Plaintiff’s sued the owners of the home where the intoxicated driver had been drinking. The judge hearing the motion indicated that there was conflicting evidence on the level of knowledge the hosts had of the drivers’ intoxication and referred to the following passages from the SCC decision in Childs”

In addressing the “something more” in the Childs decision the court in Sidhu summarized three situations where courts have in the past imposed duties to act:

Where a defendant has intentionally attracted and invited third parties to inherent and obvious risks created by the defendant;

Where there is a paternalistic, supervisory or controlling relationship between defendant and plaintiff;

Where the defendant is engaged in a public function or commercial enterprise that implies responsibility to the public.

The Court in Sidhu went on to state that these were not strict legal categories but rather highlighted the factors that could lead to a positive duty to act. The Court noted that the common factor in each was the social host’s “material role in the creation or management of the risk” and further a “reasonable reliance” on the social host to monitor guests’ alcohol intake or prevent intoxicated guests from driving.

Based on the possibility that the evidence in Sidhu could potentially fall into the “something more” left open by the SCC the motion was dismissed.

Similarly, in Lutter v. Smithson a case involving a minor’s consumption of alcohol at a party a summary judgment motion was dismissed on the basis that the issue was best addressed after a full trial.

Other decisions, including Ferrier v. Hubbert, have allowed motions for summary judgment in cases involving social host liability.

No trial decisions have yet followed in any of the above noted cases leaving the substantive law of social host liability unchanged with no formal findings of liability against a host to date.

The most recent development on social host liability in Ontario occurred on February 2, 2017 when the Ontario Superior Court of Justice released a potentially important decision in the law of social host liability. The court in Wardak v. Froom denied a summary judgment motion brought by the defendant to have the Plaintiff’s social host liability case dismissed.

The facts of Wardak v. Froom relate to a 19th birthday party that Stephen and Carol Froom held for their son in April of 2011. While the defendants did not serve alcohol, they were aware that guests would be drinking at the party and were also aware that many of the guests were below the legal drinking age. The defendants supervised the party from upstairs, which included underage drinking. They observed the Plaintiff, Dean Wardak, displaying signs of intoxication and when he was about the leave the defendants offered to walk him to his house, which was close by. He declined but later walked home by himself. Upon arriving home, he entered a motor vehicle and was involved in a single vehicle accident.

The facts in Wardak are distinguishable from Childs in that Wardak does not involve a question of a duty to a third party by the host and involves underage drinking.

While it is well established that a commercial host can be held liable to its patrons or third parties injured by their patrons, Childs is still the leading authority on the issue of social host liability and the current state of social host law in Canada.

It is clear that various other cases are either working their way through the system or have addressed the question of the SCC’s “something more” in the social host context.

One can’t help but feel that in the not to distant future a trial level decision will impose liability on a social host. I would expect that case will either involve homeowners who allowed underage drinking, a party involving a host who over served a guest and allowed them to leave or some unique circumstances in which the host had a role in creating the risk and it was reasonable to expect them to monitor the safety of their guests.

Whether that fist social host liability case will then need to pass a public policy analysis at the Supreme Court and whether the Supreme Court would, in 2018 and beyond, preclude social host liability due to public policy concerns is a more difficult question to predict. Perhaps Wardak v. Froom will give us some further insight should it proceed to trial.

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